JUDGMENT Hon’ble Ran Vijai Singh, J.—Through this writ petition, the petitioner has prayed for quashing the order dated 30.9.2004 passed by Joint Director Treasury and Pension, Allahabad, by which an amount of Rs. 23,000/- has been deducted from the amount of gratuity payable to the petitioner. 2. The facts giving rise to this case are that the petitioner was appointed as lower Division Clerk, in Medical and Health Department, and was posted at Faizabad in the year 1965 to be more specific on 11.1.1965. On 16.12.1968, he was promoted on the post of Uppar Division Clerk, and in 1995, he was again promoted to the post of Senior Clerk in the scale of Rs. 1350-2200/-. Again the petitioner was promoted to the post of Head Clerk Grade II on 7.9.2000, and in the year 2002, he was assigned the post of Head Clerk Grade I i.e. the post of Office Superintendent. The petitioner retired from service on 3.7.2004. However after retirement while paying the post retiral dues an amount of Rs. 23,000/- has been deducted from the gratuity of the petitioner, on the ground, that while he was in service some excess payment has been made because of the wrong fixation of the salary for which the petitioner was not entitled. 3. A counter-affidavit has been filed by the State respondents. In paragraph No. 6 of the counter-affidavit, it is stated that the Government order on which basis excess payment was made, was later on withdrawn but the petitioner has been receiving the excess payment inspite of the knowledge that he was not entitled for the same. It is also stated that for payment of post retiral dues, the petitioner himself has given an application stating therein that his post retiral dues be paid and if any excess amount has been paid to him that may be deducted. 4. Sri R.N. Tripathi learned counsel appearing for the petitioner submitted that the petitioner has nowhere admitted the excess payment and only it has been written in the application, under the circumstances when the respondents have withheld the payment of entire post retiral dues, that in case there is any payment of excess amount that may be deducted. 4. Sri R.N. Tripathi learned counsel appearing for the petitioner submitted that the petitioner has nowhere admitted the excess payment and only it has been written in the application, under the circumstances when the respondents have withheld the payment of entire post retiral dues, that in case there is any payment of excess amount that may be deducted. In his submissions, in the excess payment, there was no role of the petitioner either in concealing any material fact or misrepresenting the authorities, and whatever fixation has been made that has been made on the instance of the respondents without there being any role of the petitioner 5. On the contrary Sri J.N. Maurya, learned standing counsel appearing for the state respondents has vehemently argued that the order of deduction has been passed only after the consent of the petitioner. In support of his submissions, he has placed reliance upon the consent letter of the petitioner, in which, factum of the excess payment has been admitted and it was consented that any excess amount paid to the petitioner may be deducted. In the submissions of learned standing counsel, in view of the Government order referred in paragraph 6 of the counter-affidavit, the petitioner was not entitled for the amount which he has received. He has also submitted that the petitioner had been knowingly receiving the excess amount due to wrong fixation of salary, therefore, such amount can very well be recovered from the amount of gratuity. In support of his arguments, he has placed reliance upon two judgments of the Apex Court in U.P. State Sugar Corporation Ltd. and others v. Kamal Swaroop Tondon, 2008 (2) SCC 41 and Syed Abdul Qadir and others v. State of Bihar and others, 2009 (3) SCC 475 . 6. I have heard learned counsel for the petitioner and learned standing counsel and considered their submissions and perused the record. 7. In the entire counter-affidavit, there is no indication that there had been any role of the petitioner in wrong fixation of his salary. The element of fraud or mis-representation is also missing in the counter-affidavit filed by the State respondents. The only shelter has been taken of the Government order dated 17.10.1985, by which, earlier Government order of 1983 was withdrawn, on which basis wrong fixation was made. 8. The element of fraud or mis-representation is also missing in the counter-affidavit filed by the State respondents. The only shelter has been taken of the Government order dated 17.10.1985, by which, earlier Government order of 1983 was withdrawn, on which basis wrong fixation was made. 8. It is worthwhile to mention that in view of the averments made in paragraph 6 of the counter-affidavit it appears that the benefit of fixation of salary of the petitioner was extended with effect from 1.8.1982 on the basis of Government order dated 4.2.1983 and this Government order was made ineffective/withdrawn in the year 1985. Copy of the Government order of 1985 has been brought on record as Annexure 2 to the counter-affidavit. Whereas alleged excess payment was deducted after the retirement of the petitioner in the year 2004. 9. Looking into the submissions of learned standing counsel that in view of the decisions of the Apex Court, the excess payment can be recovered from the amount of post retiral dues, the cases cited by learned standing counsel have to be seen. 10. Learned standing counsel has placed reliance upon the judgment in the case of Syed Abdul Qadir and others v. State of Bihar and others (supra) in paragraph No. 58, the Apex Court has observed as under : “The relief against recovery is granted by Courts not because of any right of the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, Courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess.” See Sahib Ram v. State of Haryana, (1995 Supp (1) SCC 18 : 1995 SCC (L&S) 248, Shyam Babu Verma v. Union of India, (1994) 2 SCC 521 :1994 SCC (L&S) 683 : (1994) 27 ATC 121, Union of India v. M. Bhaskar, (1996) 4 SCC 416 : 1996 SCC (L&S) 967, V. Gangaram v. Director, (1997) 6 SCC 139 : 1997 SCC (L&S) 1652, Col. B.J. Akkara (Retd.) v. Govt. B.J. Akkara (Retd.) v. Govt. of India, (2006) 11 SCC 709 : (2007) 1 SCC (L&S) 529, Purshottam Lal Das v. State of Bihar (2006) 11 SCC 492 : (2007) 1 SCC (L&S) 508, Punjab National Bank v. Manjeet Singh, (2006) 8 SCC 647 : (2007) 1 SCC (L&S) 16 and BIhar SEB v. Bijay Bhadur, (2000) 10 SCC 99 : 2000 SCC (L&S) 394. Here in this case, the Apex Court has laid down two criteria : (1) Excess payment can be recovered in case it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid. (2) In the cases where the error of excess payment is detected or corrected within a short time. 11. I have gone through the contents of counter-affidavit and find that both these ingredients are missing in this case as there is no material on record to indicate that the petitioner has received the excess payment knowingly. In fact, there is no such averments in the counter-affidavit that he has been receiving excess payment with full knowledge. Otherwise also, factum of receipt of excess amount with knowledge requires pleading and proof which is missing in this case. 12. So far as the second ingredient is concerned. The Apex Court has given a liberty to the employer to recover such excess payment if that is detected or corrected within a short time of the wrong payment. Here in this case, as I have noticed the excess payment was started to be paid in the year 1983, w.e.f. 1.8.1982 and the Government order on which the wrong fixation was done made ineffective in the year 1985 whereas the impugned order has been passed in the year 2004 much after the retirement of petitioner. Therefore, this is not a case where it can be said that the factum of wrong payment was detected within the short time as indicated in the judgment of the Apex Court. Therefore, the decision cited by learned standing counsel in the case of Syed Abdul Qadir and others v. State of Bihar and others (supra) is distinguishable on the fact and not applicable under the facts and circumstances of this case. 13. Therefore, the decision cited by learned standing counsel in the case of Syed Abdul Qadir and others v. State of Bihar and others (supra) is distinguishable on the fact and not applicable under the facts and circumstances of this case. 13. So far as the second decision in the case of U.P. State Sugar Corporation Ltd. and others v. Kamal Swaroop Tondon is concerned, in this case the controversy before the Court was with regard to the recovery of an amount, which had caused to the department due to negligence of the employee and for that disciplinary proceeding was started on the date of retirement. The Apex Court was of the view that such an enquiry as well as recovery is permissible. Here in this case, this ingredient is missing as the recovery in question from the gratuity is not an outcome of an amount which can be termed as loss to the department because of the negligence of the petitioner, therefore, this case is also of no help to the respondents. 14. Except these contingencies which have been mentioned in the above cases by the Apex Court, the law is settled that retiral benefits are earned by an employee for long and meritorious services rendered by him/her where they are not paid to the employee gratuitously or merely as a matter of boon. It is paid to him/her for his/her dedicated and devoted work. 15. In the present case the exception carved out by the Apex Court in the cases of U.P. State Sugar Corporation Ltd. and others v. Kamal Swaroop Tondon and Syed Abdul Qadir and others v. State of Bihar and others (supra) are missing, therefore, the general law laid down by the Apex Court in this regard will be applicable which will be discussed later. 16. Here it may not be out of place to mention that after the retirement of the petitioner, the entire post retiral dues was withheld by the respondents because of the alleged excess payment, and in this circumstance, the petitioner had no option except to say that whatever excess payment has been made that may be deducted and remaining amount be paid. I am of the view that this kind of admission or consent cannot be said to be valid and binding consent and in fact this was a consent arising out of the compelling circumstances. 17. I am of the view that this kind of admission or consent cannot be said to be valid and binding consent and in fact this was a consent arising out of the compelling circumstances. 17. Coming to the general proposition what is the settled law with regard to an order of recovery of excess payment after retirement of an employee. I would like to refer some cases on this point. 18. The Apex Court in the case of State of Orissa and others v. Adwait Charan Mohanty and others, 1995 Suppl (1) SCC 470, has held that if any excess amount has been paid to the employee without there being any case of mis-representation or fraud played by the petitioner, such amount cannot be recovered after the retirement and admitted facts that there was no role of the petitioner in wrong fixation of salary. 19. In the case of Nand Kishore Sharma and others v. State of Bihar and others, 1995 Suppl (3) SCC 722, it has been held that amount already paid cannot be recovered. In that case, Apex Court was considering regarding the withdrawal of revised pay scale and recovery of arrears. The State of Bihar consequent to the report of the Pay Commission recommended revised pay scale for Plant Protection Supervisor which was accepted and the department enforcing the revised pay scale paying the arrears in lump sum in the year 1981. The State Government subsequently directing the recovery of excess payment. Apex Court held that amount already received cannot be recovered. 20. In State of Karnataka and another v. Mangalore University Non-Teaching Employees and others, (2002) 3 SCC 302 , the Apex Court was considering the entitlement of house rent allowances and subsequently it was found that they were not entitled for the same but in that circumstances also the Apex Court has held that “ in such circumstances, since the employees had drawn the allowances on the basis of financial sanction of the competent authority that is Government and had incorporated additional expenditure towards house rent, held, the employees should not be punished for no fault of theirs, hence there cannot be any recovery “. 21. 21. In Sahib Ram v. State of Haryana and others, 1995 Suppl (1) SCC 18, it has been held in para 5 that the Principal in the said case has erred in granting relaxation of the education qualification and has awarded revised pay scale. Since it was not made on any misrepresentation made by the petitioner, no recovery can be made from the petitioner. 22. A Division Bench of this Court in the case of State of U.P. and others v. State Public Services Tribunal, (2004) 1 UPLBEC 127 , has taken view that where incumbent is not at all responsible for such wrong fixation, by no stretch of imagination such direction can be issued for recovery of the amount. 23. In Harish Chand Srivastava v. State of U.P., (1996) 3 UPLBEC 1840, it has been held by the Division Bench that if certain benefits have been given to a person not on the basis of mis-representation or misappropriation of the person concerned and in lieu thereof if some monetary benefit has been given that cannot be recovered. 24. In view of the foregoing discussions, I am of the view, that deduction of Rs. 23,000/- from the gratuity of the petitioner is arbitrary exercise of power of the employer and this kind of order is unsustainable in the eye of law. 25. In the result, the writ petition succeeds and is allowed. The impugned order dated 30.9.2004 passed by respondent No. 3 is hereby quashed. 26. The respondents are directed to pay the deducted amount alongwith interest as permissible under law within a period of four weeks from the date of receipt of certified copy of the order of this Court. In case, the payment is not made within time allowed by this Court, the petitioner shall be entitled 9% interest on the said amount till the date of actual payment. —————